HE WAS BLINDED BY SCIENCE

We would give writing this blog and soak up tropical rays aboard our 300-foot long yacht if we had a nickel for every time a defendant has told us that his attorney didn’t listen to what had really happened. Occasionally, an opinion comes along to remind us that this is often the case.

Jim’s lawyer was no science guy. That was too bad. As every student of the drug war knows, Section 2D1.1 of the Sentencing Guidelines is driven by drug weight. The more a defendant’s drugs weighed, the higher the sentence.

At Jim’s trial, a forensic chemist explained that all of the liquids the cops seized when Jim’s lab was raided either contained meth or pseudoephedrine. All of the various liquids containing meth was 150.2 grams, and the combined weight of liquids containing the pseudoephedrine was 124.9 grams. The jury found Jim responsible for 150.2 grams of meth.

During the trial, Jim repeatedly explained to his lawyer that no one was looking at the meth issue correctly. He said most of the liquids counted against him were mostly “toxic waste materials” that were “unusable.” He complained he started with only 2.4 grams of pseudoephedrine and said that “it is impossible to turn 2.4 grams of pseudoephedrine into more than 2.4 grams of methamphetamine.” He told counsel “on numerous occasions that the liquids seized by the police were unusable in their current form and were mostly nothing more than the waste materials from the one multi-step process that I was conducting to make a small amount of methamphetamine for my own personal use.”

His lawyer didn’t get it. He thought that “unusable” liquids were just meth mixtures too weak to get users high. Something like ditch weed is to pot. He told Jim it didn’t matter, because all of the weight of the liquid mixtures had to be included in the sentence calculation.

Jim got 20 years.

He then filed a post-conviction motion under 28 USC 2255, complaining that his attorney was ineffective for failing to conduct an adequate investigation, to hire an expert witness to testify as to the amount of usable methamphetamine that could be produced from the liquids; to object to jury instructions addressing whether he manufactured a “mixture or substance” containing methamphetamine; and to challenge the jury instructions and presentence report. Jim fully explained the three-step process he used to manufacture methamphetamine, and that starting with 2.4 grams of pseudoephedrine, it is impossible to end up with more than 2.4 grams of meth. He asserted that he repeatedly told counsel those facts “from the very beginning,” but counsel failed to argue that the liquids were not a usable “mixture or substance.”

Jim’s lawyer admitted that he did not know what Jim had meant by “usable.” As to whether the substances amounted to “mixtures,” he explained that, after he had talked “with both probation and the Government on that issue,” he concluded that the substances were “mixtures” so he was “satisfied that the calculations were correct.”

The district court concluded Jim was not entitled to a hearing on his 2255 motion. But earlier this week, the 11th Circuit agreed with Jim, and ordered that the district court give him the evidentiary hearing he sought. The Circuit pointed out that precedent clearly held that waste product, even if trace amounts of the drug were present, “which is unusable and not ready for retail or wholesale distribution” should not be counted in the weight of the drugs attributed to a defendant. The Circuit said that “if a petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim… A petitioner need only allege — not prove — reasonably specific, non-conclusory facts that, if true, would entitle him to relief. If the allegations are not affirmatively contradicted by the record and the claims are not patently frivolous, the district court is required to hold an evidentiary hearing.”

The Circuit observed that If Jim “proves the factual allegations he has made, he will have shown that counsel’s failure to render reasonably effective assistance not only resulted in an erroneously higher guidelines range but it also caused the sentencing court to apply an inapplicable statutory mandatory minimum for Count 1. There is nothing in the record to indicate that the combined force of those two errors did not affect his sentence. To the contrary, the fact that the district court sentenced Griffith to the bottom of the guidelines range on the grouped counts, even though the government argued for a sentence above the guidelines range, is evidence of a reasonable probability of a different result.”

SUPREME COURT DECIDES THREE AGAIN

The Supreme Court issued three opinions yesterday, all on criminal matters.

Brady Material Not Material

Turner v. United States, Case No. 15-1503: The case concerns the murder of Catherine Fuller, a District of Columbia mother, nearly a quarter-century ago. The petitioners in the case were a group of Washington, D.C., men who were convicted of the crime, based primarily on testimony from alleged eyewitnesses. Years later, a reporter learned that the men’s lawyers had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had not turned over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts. However, last fall the justices agreed to review the case, focusing on whether the men’s convictions must be set aside under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant.

The Supreme Court affirmed, 6-2, holding that the government did not violate Brady. Justice Breyer wrote that the question before the court was whether the withheld evidence was material under Brady. In the case, a group attack was the very cornerstone of the Government’s case, and virtually every witness to the crime agreed that Fuller was killed by a large group of perpetrators.

Pat Brady – Roy Rogers’ comical sidekick back in the 1950s – had nothing to do with Brady v. Maryland, which is deadly serious for many defendants.

The Court held that it was not reasonably probable that the withheld evidence could have led to a different result at trial. Petitioners’ problem, Justice Breyer wrote, is that their current alternative theory would have had to persuade the jury that two defendants had falsely confessed to being active participants in a group attack that never occurred; that another person falsely implicated himself in that group attack and yet gave a highly similar account of how it occurred; that an otherwise disinterested witness wholly fabricated his story; that two other witnesses likewise testified to witnessing a group attack that did not occur; and that Montgomery in fact did not see petitioners and others, as a group, identify Fuller as a target and leave together to rob her.

The case is very fact-bound, meaning that it may not have a lot of relevance to other Brady cases.

Divna Maslenjak was an ethnic Serb who came to the United States as a refugee from what is now Bosnia, fleeing the conflict in the former Yugoslavia. She became a U.S. citizen but was later stripped of her U.S. citizenship and deported (along with her husband) to Serbia after the U.S. officials discovered that she had made false statements during the naturalization process. Divna told immigration officials (among other things) that her family feared persecution from Muslims, and that they might be abused because her husband had evaded service in the army.

That turned out to be false, Her husband actually had served in the army, and was part of a unit that participated in an infamous massacre of Muslims.

Divna admitted she lied to U.S. immigration officials, but she argued that she should still be able to remain a U.S. citizen because the false statements were not material – that is, they would not have been important to the officials deciding whether to grant her citizenship application.

Well, we’re calling you a liar, Ms. Maslenjak… But was your lie material?

In an opinion by Justice Kagan, the Court vacated and remanded, by 9-0, with three concurrences. The Justices held that the government must establish an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means the government must demonstrate that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts that would justify denial.

The Court did not decide whether the lie Divna told was disqualifying. In all likelihood, it is. But that is for the district court to decide on remand.

Weaver v. Massachusetts, Case No. 16-240:

This case explored whether a criminal defendant who contends that his lawyer provided constitutionally inadequate representation that resulted in a “structural” error – that is, a fundamental error that affects the entire structure of a trial – must also show that he was harmed by that inadequate representation.

Kentel Weaver was arrested in 2003 at the age of 16 for the murder of a 15-year-old in Boston. He eventually confessed. However, Weaver’s case went to trial anyway, with a jury pool of approximately 90 potential jurors.

When Weaver’s mother and other supporters arrived for the trial, they were told – on two separate days – that the courtroom was “closed for jury selection.” Weaver’s lawyer was aware that Weaver’s supporters had not been admitted to the courtroom, but he did not object. Several years later, Weaver sought a new trial, citing (among other things) his lawyer’s failure to object when the courtroom was closed during jury selection. The judge ruled that the courtroom had indeed been closed, in violation of Weaver’s Sixth Amendment right to a “public trial.” But he also ruled that Weaver would have to show that he was prejudiced by the courtroom closure, which he had failed to do.

In an opinion by Justice Kennedy, the Supreme Court held, 7-2, that although the right to a public trial is important, “in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant’s standpoint.” Here, Weaver had not shown a “reasonable probability of a different outcome but for counsel’s failure to object, and he had not shown that counsel’s shortcomings led to a fundamentally unfair trial. He is not entitled to a new trial.”

The Court said the proper remedy for addressing violation of the right to a public trial depends on when the objection was raised. If an objection is made at trial and the issue is raised on direct appeal, the defendant generally is entitled to “automatic reversal” regardless of the error’s actual “effect on the outcome.” If, however, the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance claim, the defendant generally bears the burden to show deficient performance and that the attorney’s error “prejudiced the defense.” To demonstrate prejudice in most cases, the defendant must show “a reasonable probability that . . . the result of the proceeding would have been different” but for attorney error.

In other words, if the defendant’s trial counsel is incompetent, and if his appellate counsel is incompetent, he is prejudiced by having to show prejudice at the post-conviction stage? Whew. We suspect we have not heard the last of this theory.

PISS POOR PLANNING…

We’re only nine days from the 143rd running of the Kentucky Derby, one of three times in the year when average Americans pretend to be interested in horse racing. Today, we’re remembering Derby great Old Rosebud.

You don’t recall? Old Rosebud won the 40th running of the Derby in 1914 by eight lengths, a tie for the biggest margin of victory in Derby history. We’re reminded of that by today’s case, a habeas corpus appeal of a 28 USC 2254 ruling from California.

If grounds for habeas corpus actions were horses, ineffective assistance of counsel would be Old Rosebud. The 6th Amendment does not entitle criminal defendants to legal counsel at trial, it entitles them to effective legal counsel. A defendant is not entitled to Perry Mason. But then, he or she is not to be saddled with Vinny Gambini, either.

Ineffective assistance of counsel is far and away the most claimed constitutional defect in the world of post-conviction remedies. Despite (or maybe because) the ineffective assistance of counsel claim is so well used, courts look at such claims with a gimlet eye. A successful claimant has to show, first, that his or her lawyer screwed up, that is, did something or failed to do something that a lawyer of average skill would not have done or omitted. And that’s the easier of the standards. The claimant then has to show that except for the screwup, there is a reasonable probability that things would have turned out differently.

That second standard is called “prejudice.” It’s not prejudice in the classic sense, but rather means that the screwup somehow worked to the defendant’s detriment. This necessarily means that how close the case was matters. We see the problem often. The habeas petitioner tells us that her attorney failed to call a witness who would have said she was 20 miles away from the convenience store at the time it was robbed. If the only evidence is a grainy video of someone the same height as the defendant wearing sunglasses and a black hoodie and a clerk who says he thinks the defendant was the robber, a lawyer’s failure to call an alibi witness is pretty significant.

Unfortunately, however, there was a busload of nuns parked outside of the convenience store, and all of the sisters saw the defendant leave the 7-11 with a bag of swag, and then take off the glasses and hoodie to take a selfie in front of the store. All of a sudden, a single alibi witness is pretty unlikely to have changed the outcome.

Courts don’t like to second-guess defense attorneys. Over the years, the rule has evolved that if the lawyer investigated the evidence and witnesses, and then chooses a strategy, the courts will seldom question that strategy. In our example, the lawyer read the discovery, talked to a few of the nuns, and quickly concluded that an alibi defense would look phony. He instead decided that since his client was known as “Mushmouth Marianne,” his better defense was to argue the clerk misunderstood her. She was there to pick up the garbage, but when she said, “Give me all your trash,” the clerk thought she said, “Give me all your cash.” And inasmuch as it was a sunny, clod day, a hoodie and sunglasses made perfect sense.

Pretty weak, but the lawyer investigated the evidence and picked a strategy based on what looked the most promising. Courts do not tend to Monday-morning quarterback decisions like that. But occasionally courts need to be reminded that reasonable investigation is what leads to development of strategy. It cannot be the other way around.

Consider what happened to poor, simple teenager Sarah Weeden. She was convicted in California of felony murder and sentenced to 29-to-life for her role in a bungled robbery. It turns out that while 14-year old Sarah was not present at the scene of the crime, she had some involvement in making the robbery happen.

Weeden’s entire defense at trial consisted four character witnesses, who generally are people least likely to sway a jury. Although there was plenty of evidence that Sarah had heard about the robbery plans and helped lure the marks – some boys she had met earlier – to a park where the robbery occurred (and the robber’s gun discharged accidentally, killing one of the victims), all her attorney presented was the testimony of four character witnesses who said Sarah was not the kind of girl to who would plan a robbery. Sarah’s attorney did not get her evaluated by a psychologist or present expert testimony about the effect of her youthfulness on her mental state.

With a new lawyer, Sarah brought a habeas corpus motion claiming her trial counsel was ineffective for failing to investigate psychological evidence. She submitted a report from a psychologist concluding that “it is extremely unlikely Sarah would intend to commit robbery or knowingly participate in one,” and “she would probably be slow to understand that a robbery was being considered by others if their intentions were not clearly articulated.” The report found Sarah to “quite passive and vulnerable to being manipulated by others,” and concluded she had “serious cognitive deficits (for example, 91% of people her age function[ed] intellectually at a higher level),” “well below average language skills,” and “a strong tendency to miss important environmental cues.”

Sarah’s lawyer defended his decision, claiming he did not obtain a psych evaluation of his client because “regardless of what the doctor would have concluded, it would be inconsistent with the defense that I was putting forth.” Counsel also speculated the prosecution might have used the results of an examination against her. The state court concluded that defense counsel’s failure to obtain a psychological examination was a “sound tactical decision.” State appellate courts agreed, as did a federal district court.

Last week, the 9th Circuit took a very different view.

The Circuit complained that the state courts’ conclusions that Sarah’s attorney made a “reasonable decision” because counsel feared that the results of an expert evaluation might undermine his trial strategy “puts the cart before the horse.” The Court said, “Counsel cannot justify a failure to investigate simply by invoking strategy…. counsel’s investigation must determine trial strategy, not the other way around.” Sarah’s counsel could not have reasonably concluded that a psychological examination would conflict with his trial strategy without first knowing what such an examination would reveal. Besides, the Circuit pointed out, defense counsel’s conclusion that the prosecution could have used the results of an examination against Sarah was nonsense: a defendant must disclose expert reports she intends to rely on at trial, but if the evaluation was not helpful, counsel could decide not to use it, and thus not produce it.

“The correct inquiry,” the 9th said, “is not whether psychological evidence would have supported a preconceived trial strategy, but whether Weeden’s counsel had a duty to investigate such evidence in order to form a trial strategy, considering all the circumstances…. The answer is yes.” The State’s felony murder theory required proof that Sarah had specific intent to commit the robbery, so her “mental condition was an essential factor in deciding whether she actually had the required mental states for the crime.”

But did the mistake prejudice Sarah? The appellate panel said it did. Sarah’s psychologist concluded that “it is extremely unlikely she would intend to commit robbery or knowingly participate in one, that she would probably be slow to understand that a robbery was being considered by others if their intentions were not clearly articulated, and that she was “quite passive and vulnerable to being manipulated by others.” This testimony from a qualified expert would have added an entirely new dimension to the jury’s assessment” of the critical issue of Sarah’s mens rea.

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Legal Thought for the Day

“I agree that the sentence is not substantively unreasonable; but I believe the result to be close to absurd." ~~~ Judge Guido Calabresi, concurring, United States v. Jones, Case No. 15-1518-cr (2nd Cir., Oct. 5, 2017).